Category: Articles
Article
Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception
Sabine Tsuruda, Assistant Professor, Queen’s University Faculty of Law.
This Article develops a theory of meaningful work to support an alternative to the ministerial exception that would permit religious organizations to hire like-minded employees, but only when doing so would not subvert the purposes of employment discrimination law. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through a similar exception in Canadian law and revisits ministerial exception cases to show how the authenticity exception better closes the gap between religious liberty and exempted discrimination.
Sep 2021
Article
The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review
Alexandra Harrington, Associate Professor of Law and Director, Criminal Justice Advocacy Clinic, University of Buffalo School of Law.
This Article suggests a way to bring the current reality of parole closer to the Court’s promise that parole can render life sentences constitutional. This Article considers how the Supreme Court’s decisions in Graham, Miller, and Montgomery work to constitutionalize parole and change the conventional understanding of the board’s determination. The Article also details the current standards of judicial review of parole board decisions. Because parole is now operating to make constitutional the sentences of people who were children at the time of the offense, the Eighth Amendment task placed on parole boards’ shoulders necessitates substantive standards for the parole board, as well as judicial scrutiny of the board’s determinations.
Sep 2021
Article
Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare
Jill I. Goldenziel, Professor of International Law and International Relations, Marine Corps University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania
This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different instances of lawfare between China and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the Spratly Islands, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the Article concludes with recommendations for a U.S. lawfare strategy.
Sep 2021
Article
Employment Practices Liability Insurance and Ex Post Moral Hazard
Erin E. Meyers, J.D./Ph.D., Program in Law and Economics, Vanderbilt Law School
Joni Hersch, Cornelius Vanderbilt Professor of Law and Economics, Vanderbilt Law School
Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law’s goal of deterrence and from notions of justice. We assess the validity of these criticisms…
Aug 2021
Article
Women on the Frontlines
Michele Goodwin, Chancellor’s Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy at the University of California, Irvine
This Article takes aim at the troubling and persistent dis-empowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in…
Aug 2021
Article
Civil Liberties in a Pandemic: The Lessons of History
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law
Michele Goodwin, Chancellor’s Professor at the University of California, Irvine; founding director of the Center for Biotechnology and Global Health Policy
Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died.1Johns Hopkins U. & Med. Coronavirus Resource Ctr., https://coronavirus.jhu.edu/ [https://perma.cc/XK5J-Y6KS] (last visited Mar….
Aug 2021
Article
The City’s Second Amendment
Dave Fagundes, Baker Botts LLP Professor of Law, University of Houston Law Center
Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law
This Article addresses the question of the extent to which cities themselves have a right to bear arms. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post-Heller world.
Mar 2021
Article
A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism
Neil H. Buchanan, Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation, Fredric G. Levin College of Law, The University of Florida
Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
This Article argues that we have witnessed substantially less direct conflict between L&E and O&T than one would expect because, despite their different foundations, the two approaches closely resemble each other in a way that permits conservative jurists to make all-things-considered and ideologically laden value choices and then use L&E, O&T, or both to offer post hoc rationalizations for those choices.
Mar 2021
Article
Litigation Science After the Knowledge Crisis
Edith Beerdsen, Acting Assistant Professor of Lawyering, New York University School of Law
This Article is the first to address the broad implications of the Replication Crisis for the production of scientific knowledge in a civil-litigation context. Drawing on insights from the Crisis, it argues that current procedural practice is simply incapable of providing a court with the information it needs to make an accurate assessment of the reliability of scientific evidence. The Article identifies a number of core principles, drawn from the response of academic science to the Replication Crisis, that can guide reforms to the treatment of scientific evidence in civil litigation. It argues that shoring up the courts’ capacity to evaluate scientific evidence requires a rethinking of the entire chain of creation of scientific knowledge and a re-framing of the role of the court in that chain.
Mar 2021
Article
The Evidence Rules That Convict the Innocent
Jeffrey Bellin, Professor, William & Mary Law School
This Article explores the lessons of the Innocence Movement for American evidence law. It argues that the discovery and ongoing chronicle of hundreds of false convictions present a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules and a welcome infusion of energy into evidence policymaking and commentary.
Jan 2021
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